My client was recalled from a conditional discharge and placed on a second restriction order 6 months later. The MoJ declined to discharge one of the orders on the basis that they wanted the seriousness of his offending to be evident. This was useful when he was detained as we appealed every 6 months. However he has now been conditionally discharged by MoJ warrant which only refers to one of the orders. I have been in correspondence with his caseworker- who is extremely experienced- but cannot get the point that both orders should be conditionally discharged as currently he is technically still detained under one of them. I an tempted to advise him to appeal to the tribunal against the order which remains in place as the case worker has stopped responding to my emails. I am starting to wonder if I am missing something. Any advice?
Purely off the top of my head, would it not be illogical for the MoJ to allow one CD and not the other (hence perhaps the case worker’s head scratching as they may assume a CD is a CD is a CD)?
I suppose like a MHT considering the same issue: if they CD one 37/41 order they would, logically speaking, have to CD both.
My tuppence worth is that your client is now CD’d (under both orders) and it is just an error on the paperwork that it doesn’t refer specifically to both orders.
Well - I did think about that Ian but during the tribunal proceedings all the tribunals we had were clear that both orders would need to be before the tribunal if discharge was going to be considered. One tribunal adjourned so we could appeal on the other order as well so it could be joined. I would be happy if the MoJ said that there was a simple error and the warrant related to both orders but they have not said that.
Can this be right? If a valid application is made then I think the tribunal need to consider all sections in force – though there might be some public policy reason to treat them differently (eg first six months of a hospital order).
To answer your original question, if the Secretary of State won’t discharge the extra s37/41 then I’d either ask the tribunal to do this or judicially review the Secretary of State’s irrational decision. JR might suit the patient if he’s not in a rush or not wanting to use up a tribunal application, and the judgment could be useful for us all generally.
Thank you Jonathan
I think it probably is right as otherwise we wouldn’t need to have matters joined? On a s3 obviously it is a different case as if the tribunal discharge it all other applications would end. I do wonder about concurrent s3s which must occasionally happen accidentally- would discharging one also discharge the other?
He is still in the first year post C/D so my plan is to appeal on the order which remains in force- which is not using up his appeal under the C/D as he doesn’t have a right of appeal under that. I just wondered if anyone could see any pitfalls which I had missed.
I think that’s begging the question, as you would only really have needed to have two matters joined if it were right in the first place I can see both sides of the argument though. Having concurrent hospital orders leads to absurd situations.
I don’t think this would arise because s6(4) says: “Where a patient is admitted to a hospital in pursuance of an application for admission for treatment, any previous application under this Part of this Act by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect.”
I’ve had a look at s42(2) and think you are probably right. It says: “At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions…” It talks about discharging the patient rather than discharging a specific order, so it makes sense to say that your patient has been conditionally discharged, and therefore to say that both orders have been conditionally discharged.
If the caseworker just isn’t replying to emails any more, how about sending a letter before claim? You would get an answer to that, and quite quickly. You could argue that the extra hospital order ought to be discharged, either absolutely (as the argument that concurrent hospital orders makes evident the seriousness of offending is nonsense) or – from the standpoint that the extra order has not yet been discharged – conditionally (as asserting that a patient is both detainable and not detainable is irrational). The answer would almost certainly be confirmation that both orders were conditionally discharged on the same date, but if they don’t concede that then at least with judicial review you would get a court judge to decide the point authoritatively.
The only thing I can think of is that the tribunal might decide that both orders have been conditionally discharged within the past 12 months so it lacks jurisdiction. Also, a tribunal hearing might not be as neat a process or lead to as tidy a result as the MOJ providing the confirmation mentioned above – the tribunal’s discharge powers also talk in terms of discharging the patient rather than an order, the whole premise of the tribunal’s deliberations would be absurd (e.g. deciding whether to discharge a patient who is already discharged), and it could result in having two conditional discharge dates instead of one.
The more I think about it, the more it seems that (apart from confusion) the only effects of having multiple hospital orders are having extra hospital orders on your criminal record and having extra tribunal eligibility periods. Though I’ve not thought this all through fully…
Thanks Jonathan for your very thorough reply. If we just assume that both orders were discharged when the patient was discharged maybe I don’t need to do anything at all…as Ian suggests. However I do wonder what will happen when he is recalled as it will be confusing if they only recall one order.
Update on this!
I got so fed up with the MoJ refusing to engage that I sought client’s agreement to appeal to MHT. There commenced an extraordinary series of directions as I sought to get to the bottom of the status of the order which had not been discharged. MoJ seemed unable to understand the point and submitted three obtuse statements which failed to address it.
Finally they revealed that they had amended the original warrant to record both orders when I first queried it! They just had not seen fit to tell me that. Extraordinary!